United States v. Robin Wilson Horton

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 22, 2006
No. 05-15607 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 05-00086-CR-CG

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROBIN WILSON HORTON,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Alabama
_________________________

(June 22, 2006)

Before TJOFLAT, ANDERSON and BARKETT, Circuit Judges.

PER CURIAM:

Robin Wilson Horton appeals his sentence following his guilty plea to

distribution and possession with the intent to distribute four ounces of
methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B).

On appeal, Horton argues that the district court incorrectly applied the

relevant conduct standard of U.S.S.G. § 1B1.3(a)(2) in holding him responsible for

between 200 and 350 grams of methamphetamine because the court should only

have considered the offense to which he pleaded guilty.

We review the district court’s drug-quantity determination for clear error.

United States v. Zapata, 139 F.3d 1355, 1357 (11th Cir. 1998).

“The guidelines place certain restrictions on what evidence is relevant for

guideline sentencing purposes.” United States v. Scroggins, 880 F.2d 1204, 1210

n.13 (11th Cir. 1989). Under the guidelines, a defendant’s offense level is

determined on the basis of

all acts and omissions committed, aided, abetted,
counseled, commanded, induced, procured, or willfully
caused by the defendant; and . . . in the case of a jointly
undertaken criminal activity, all reasonably foreseeable
acts and omissions of others in furtherance of the jointly
undertaken criminal activity.

U.S.S.G. § 1B1.3(a)(1). Furthermore, for offenses “of a character for which

§ 3D1.2(d) would require grouping of multiple counts,” the defendant is

accountable for all acts and omissions described above that were “part of the same

course of conduct or common scheme or plan as the offense of conviction.”

U.S.S.G. § 1B1.3(a)(2). Offenses of a character for which § 3D1.2(d) would

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require grouping include those where the offense level is determined largely on the

basis of the total harm or loss, the quantity of a substance involved, or some other

measure of aggregate harm, including those offenses covered by, inter alia,

§ 2D1.1 (offenses involving drugs). U.S.S.G. § 3D1.2(d).

“Offenses form the same course of conduct ‘if they are sufficiently

connected or related to each other as to warrant the conclusion that they are part of

a single episode, spree, or ongoing series of offenses.’” United States v. Blanc, 146

F.3d 847, 852 (11th Cir. 1998) (quoting U.S.S.G. § 1B1.3, comment. (n.9(B))).

“Similarly, offenses qualify as a common scheme or plan if they are ‘substantially

connected to each other by at least one common factor, such as common victims,

common accomplices, common purpose, or similar modus operandi.’” Id. (quoting

U.S.S.G. § 1B1.3, comment. (n.9(A))). “In determining whether two or more

offenses meet these tests, the sentencing court should consider ‘the degree of

similarity of the offenses, the regularity (repetitions) of the offenses, and the time

interval between the offenses.’” Id. (quoting United States v. Fuentes, 107 F.3d

1515, 1525 (11th Cir. 1997)). “[S]ection 1B1.3 is designed to take account of a

pattern of misconduct that cannot readily be broken into discrete identifiable units

that are meaningful for purposes of sentencing. Thus, when illegal conduct does

exist in discrete, identifiable units apart from the offense of conviction, the

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Guidelines anticipate a separate charge for such conduct.” Id. (internal quotations

and citations omitted).

The sentencing court may consider conduct not contained in the indictment,

including drug quantities for which the defendant was not charged, as relevant

conduct. United States v. Ignacio Munio, 909 F.2d 436, 439 (11th Cir. 1990). We

have held that the testimony by codefendants of a defendant’s involvement in other

drug distributions was sufficient evidence of such drugs being part of the “same

course of conduct or part of a common scheme or plan as the count of conviction”

to properly increase the base offense level pursuant to § 1B1.3. United States v.

Wilson, 884 F.2d 1355, 1357 (11th Cir. 1989).

In this case, the district court did not clearly err in assigning Horton a base

offense level of 28 based on its finding that his relevant conduct included between

200 and 350 grams of methamphetamine because the drug transactions charged in

the indictment were sufficiently connected to be considered part of the same course

of conduct or a common scheme or plan. In addition, at least four ounces from

uncharged drug sales can be attributed to Horton because the circumstances

surrounding the drug sales were similar. Moreover, Horton’s reliance on United

States v. Amedeo, 370 F.3d 1305 (11th Cir. 2004), is misplaced because in that

case, the district court incorrectly considered conduct in sentencing Amedeo that

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was sufficiently distinct from the offense of conviction that it warranted a separate

charge.

On appeal, Horton also argues that the district court erred in imposing a two-

level sentencing enhancement for possession of a firearm during the drug offense

asserting that it was not related to his drug sales, but rather used for protection

from an individual who had threatened him.

We review for clear error the district court’s findings of fact when it

enhances a defendant’s sentence in cases involving U.S.S.G. § 2D1.1(b)(1), and

review the application of the sentencing guidelines de novo. United States v.

Gallo, 195 F.3d 1278, 1280 (11th Cir. 1999).

Section 2D1.1(b)(1) provides a two-level enhancement “[i]f a dangerous

weapon (including a firearm) was possessed.” U.S.S.G. § 2D1.1(b)(1). “The

enhancement should be applied if the weapon was present, unless it is clearly

improbable that the weapon was connected with the offense.” U.S.S.G. § 2D1.1,

comment. (n.3). Once the government has shown that a firearm was present at the

site of the charged conduct, “the evidentiary burden shifts to the defendant to show

that a connection between the firearm and the offense is clearly improbable.”

United States v. Fields, 408 F.3d 1356, 1358 (11th Cir. 2005), cert. denied, 126

S.Ct. 221( 2005) (quoting United States v. Hall, 46 F.3d 62, 63 (11th Cir. 1995)).

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 Horton failed to establish that the connection between the firearm and the

offense was clearly improbable because the firearm was found in an easily

accessible location in the vehicle where he conducted drug sales, and the individual

who threatened him was incarcerated. Accordingly, the district court did not err in

imposing a two-level enhancement for possession of a firearm during the drug

transaction.

Upon review of the record on appeal and consideration of the parties’ briefs,

we find no reversible error.

AFFIRMED.

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